Op/Ed

Judges Are Not Politicians, Nor Should They Play
Politics

Posted May 17, 2017 03:45 am | Op-Ed

By
Martin Dyckman

When the Florida Constitution Revision Commission was
debating the election of judges 20 years ago, I sat in
the gallery to hear my own words used to attack
something that my editorials and columns consistently
had supported.

The issue was whether all trial judges should be
chosen exclusively by appointment, without elections, in
the same manner as Supreme Court justices and judges of
the district courts of appeal.

A commission member who opposed that found a column
in which I had flayed the Judicial Nominating Commission
of the 15th Circuit — Palm Beach County — for trying to
sandbag Gov. Lawton Chiles into appointing a favored
candidate to a vacated circuit judgeship. Chiles spoiled
the plot by appointing the nominee they didn’t think he
would choose, a Republican who had contributed to his
opponent, and who is now Florida’s chief justice, Jorge
Labarga.

The speaker was quoting the column out of context.
The newspaper’s editorials and my own signed columns had
argued consistently that of all the ways to pick judges,
election is the worst.

I still think so. Florida’s judicial nominating
commission process is still by far the best — in
principle.

In practice, however, it has been corrupted by the
Legislature’s decision in 2001 to let the governor — at
the time, Jeb Bush — appoint all nine members of each
commission. They had been set up to be independent, with
the governors appointing only three of each nine. That’s
something the present Constitution Revision Commission
should correct, although it likely won’t. Gov. Rick
Scott, who appointed 15 of the 37 members including the
chairman, has played politics with the nominating panels
like no other governor.

But I digress. A nagging fear of all print and
broadcast commentators is that their words will be taken
out of context in some campaign ad in support of someone
or something they actually oppose. If you write that
somebody is “the best of a weak field” in a primary,
expect to read in November that you called him “the best
…”

Ordinarily, there’s no remedy for the twisting of
truths out of context in politics, other than to call
out the offenders. But there is a potent one when it
comes to judicial races. The codes of conduct that
legally bind judges and lawyers forbid misrepresenting
one’s own qualifications or those of an opponent. The
Florida Supreme Court has put teeth into those codes. It
took another bite last week.

On Aug. 29, several weeks after her present 90-day
suspension without pay expires, Circuit Judge Kimberly
Shepard of the Ninth Judicial Circuit — Orange and
Osceola counties — will journey to Tallahassee for a
command appearance before the Florida Supreme Court.

She will stand before the bench, as other judges have
had to do, to hear the chief justice read a humiliating
public reprimand for unethical conduct during in her
successful 2014 campaign for an open seat. The
suspension, reprimand and payment of court costs, as
ordered, followed a recommendation from the Florida
Judicial Qualifications Commission (JQC.)

The crux of it was a campaign ad purporting to quote
the Orlando Sentinel in her favor.

“Ms. Shepard has done well,” the quotation said. “She
has kept her promises. She has worked hard. She has
maintained her integrity.”

What the ad did not say was that the comment was from
an editorial endorsing her re-election to the Florida
House of Representatives in 1994, 20 years earlier.

The 1994 editorial included the sentences “she has
legislated effectively” and “she has served her
constituents diligently.” Her 2014 ad was edited to
leave those lines out.

The out-of-context quotation could easily have misled
voters into thinking that it referred to current service
as a judge. She wasn’t a judge, nor was she claiming to
be.

She circulated the ad after the Sentinel had endorsed
her opponent. The JQC’s hearing panel concluded that her
“selective editing … was much more than a matter of
inexact punctuation, or a mistake.” She believed her
opponent to be unworthy, the panel said, “and that any
action she took to defeat him was justified.”

Shepard’s defense consisted mainly of these
arguments: Her character hadn’t changed in the 20 years
since the newspaper had endorsed her, punishing her for
campaign speech would be unconstitutional under the
First Amendment, the ad was essentially true, and the
Florida regulation in question was overbroad.

Unfortunately for her, however, the U.S. Supreme
Court had disposed of her main point in a 2015 decision
upholding a reprimand for a Tampa lawyer for conduct
during a failed campaign for a judgeship.

“Judges are not politicians, even when they come to
the bench by way of the ballot,” the U.S. court said.
“And a state’s decision to elect its judiciary does not
compel it to treat judicial candidates like campaigners
for political office.”

“A judicial candidate who knowingly misrepresents any
fact concerning the candidate or an opponent necessarily
intends to mislead the public concerning the judicial
election, thus undermining the public confidence in the
integrity of the judiciary,” wrote the Florida Supreme
Court last week in its unanimous opinion against Shepard.

It was far from the first time the court has had to
say that.

Shepard is the 29th judge to come to grief before the
JQC and the court for campaign-related conduct. Six were
removed and two resigned before it came to that. The
cases included some severe campaign law violations,
neglect of clients during campaigns, and numerous
instances of campaign misrepresentations.

The election-related cases represent a significant
fraction — 14 percent — of all those with which the JQC
and the court have dealt in public.

Complaints that it concludes are unfounded or settles
by privately counseling a judge are confidential under
the Florida Constitution, which is something else the
Constitutional Revision Commission should fix. There’s
no way now for the public to judge how well the JQC is
working.

But elections aren’t working well either. On the rare
occasion when a circuit or county court judge is
challenged for re-election, few candidates apply. Dozens
come forth, though, when a vacancy is to be filled by
appointment. Most lawyers agree with the point Alexander
Hamilton made when he wrote, “The members of the
legislature will rarely be chosen with a view to those
qualifications which fit men for the stations of judges
…”

Shepard won’t be the last Florida judge who gets in
trouble for playing politics to secure what should not
be a political position.

---------

Martin Dyckman
is a retired associate editor of what is now the Tampa
Bay Times. He is author of Floridian of His Century: The Courage
of Governor LeRoy Collins. He lives in Asheville, North
Carolina. Column courtesy of Florida Politics.

This piece was reprinted by the Columbia County Observer
with permission or license.